The High Court has ordered the release of an Albanian national from Cloverhill Prison after finding his arrest over a deportation order unlawful.
In a judgment delivered on 2 November 2011, Mr Justice Hogan ruled that the Gardaí lacked reasonable cause to suspect the man intended to avoid removal from the State. The arrest was made under section 5(1)(d) of the Immigration Act 1999. The court said the legality of his detention turned entirely on whether that arrest was lawful.
The man had arrived in Ireland in November 2007 and sought asylum, saying he had been involved in a blood feud. His asylum claim was rejected, and the Minister for Justice made a deportation order on 21 February 2011. He married an Irish citizen on 1 March that year and later applied to the Minister to revoke the order. He had attended the Garda National Immigration Bureau’s Dublin offices more than 15 times in response to directions.
On 25 October, he attended the offices with his wife and was interviewed by two detectives. Asked if he would travel home, he said he was married in Ireland and had no intention of going home. When told the Gardaí intended to deport him and asked again if he was willing to go home, he answered no. The detectives and the man gave evidence at the hearing. The judgment records a disagreement about whether he had raised the validity of his passport.
After the interview, he was told his application to remain based on his marriage had been refused. The Gardaí checked whether High Court proceedings were outstanding; after being told there were none, they arrested him. The judge noted that the Gardaí acted in good faith and believed they had reasonable grounds, but said the legal test was objective.
The judge held that saying he did not want to return voluntarily did not, by itself, show that he would take active steps to evade deportation or fail to meet a legal obligation to attend for removal. Further questions about his intentions and compliance were needed before a reasonable suspicion could be established. The court therefore found the arrest unlawful and directed his release under Article 40.4.2 of the Constitution. The ruling concerned the lawfulness of the arrest and resulting detention; it did not revoke the deportation order.